Section 19, PMLA 2002

Section 19 of PMLA, 2002 - deals with arrest provisions of the ED

ED officers not Police officers, SC

In another judgment, the Supreme Court held that the officers of the Enforcement Directorate are not police officers.

Section 41, CrPC applicable only for police officers

Therefore, it can be deduced that the provision of arrest in CrPC Section 41 is applicable to a police officer.

Amendment to CrPC in 2010

The law of arrest in CrPC was amended in 2010

A novel procedure was introduced whereby for cognizable offences, where the quantum of punishment is up to seven years, the investigating officer should issue a notice to the suspect under section 41A of the CrPC to appear before him; and as long as the suspect joins the investigation, he need not be arrested. As highlighted in the Bombay High Court order in the bail matter of the former CEO of ICICI Bank. If a suspect of an offence punishable by imprisonment for more than seven years is issued a notice under Section 41A CrPC (Section 35(3) BNSS,2023) and that person joins the investigation, then that person cannot be arrested without recording the reason for arrest.

And that reason cannot be non-cooperation with the investigation. Refusal to confess is also deemed non-cooperation with the investigation. This procedure was introduced taking cues from,

• the Supreme Court decision in ‘Joginder Kumar vs. State of UP (1994)’, and
• Royal Commission on Criminal Procedure 1978-1981 (chairman Sir Cyril Philips) report and
• the 177th report of the Law Commission (under chairman B.P Jeevan Reddy)

177th Law Commission report on arrests

The 177th report of the Law Commission suggested issuing a notice of appearance in cases of offences punishable with imprisonment of seven years or less, where the arrest of the accused is found not necessary, but his cooperation or presence is required for the purposes of investigation.

Arrests can be made after recording in writing the reason, as enumerated in sub-section (b) of Section 41(1) of CrPC.

Conditions for arresting a person under CrPC

subsection (b)(ii) of Section 41 of the CrPC narrates a list of five conditions, one or more of which must exist to cause an arrest in the case of offences attracting up to seven years of imprisonment.
One of these conditions is to prevent the suspect from committing any further offence. Two other conditions are to prevent the suspect from tampering with evidence or influencing the witness.

Arnesh Kumar vs State of Bihar, 2014 - SC

The Supreme Court judgment in ‘Arnesh Kumar vs. State of Bihar 2014’ mentions that once arrested, the person and the case diary mentioning the reason for arrest should be produced before the magistrate

BNSS, 2023 - Chapter 5

The new criminal procedure code, The Bharatiya Nagarik Suraksha Sanhita 2023 contains similar provisions under Chapter V—Sections 35 to 62.

References

Print - Indian arrest laws leaves much room for interpretation